Frawley Bundy & Wilcox v. Pennsylvania Casualty Co.

• Decision Date: 23 July 1903
• Docket Number: 1
• Citation: 124 F. 259
• Parties: FRAWLEY, BUNDY & WILCOX v. PENNSYLVANIA CASUALTY CO.
• Court: U.S. District Court — Middle District of Pennsylvania

124 F. 259

FRAWLEY, BUNDY & WILCOX v. PENNSYLVANIA CASUALTY CO.

No. 1

United States Circuit Court, M.D. Pennsylvania.

July 23, 1903

E. N WILLARD, for plaintiffs.

W. S Diehl, for defendant.

ARCHBALD District Judge.

This case, by agreement of the parties, was tried by the court without a jury, and the material facts are as follows:

The Facts.

(1) This action is brought on a judgment for $2,025.85 recovered in the Circuit Court of Eau Claire county, Wis., February 12 1902, by the plaintiffs, Frawley, Bundy & Wilcox, a firm of lawyers of the city of Eau Claire, against the defendant, the Pennsylvania Casualty Company, a corporation of the state of Pennsylvania, engaged in the business of accident insurance on a claim for legal services and disbursements.

(2) The Wisconsin suit was begun by a summons issued January 20, 1902, and served the same day, at the city of Eau Claire, on James T. Joyce, as agent of the defendant company, by R. D. Whitford, the plaintiffs' attorney, who made, under oath, the following return thereto:

'State of Wisconsin, Eau Claire County-- ss.: R. D. Whitford, being first duly sworn, says that he resides in said county and state; that on the 20th day of January, 1902, at the city of Eau Claire, in said county, he duly and personally served the within summons on the Pennsylvania Casualty Company, a foreign corporation, the defendant named in said summons, the same being then and there an insurance corporation not organized under the laws of the state of Wisconsin, by then and there delivering to and leaving with James T. Joyce, a resident and citizen of this state, personally-- he, the said James T. Joyce, being then and there an agent of the said defendent who collected and received a premium for insurance for and on behalf of said defendant, and aided and assisted in transacting other business for the same-- a true and correct copy thereof.'

(3) The defendant company had immediate notice of this suit, the copy of the summons served on Mr. Joyce having been at once forwarded by him by mail to the home office of the company, at Scranton, Pa., and there duly received; but there was no other service or notice of the summons, and no appearance was put in or answer made thereto by the company, whereupon judgment was entered by the court by default on the date and for the amount stated.

(4) At the time of the service of the summons as aforesaid, the defendant company was doing no business and had no agent or representative in the state of Wisconsin, other than as herein set forth. It had at one time insured the Chippewa Valley Electric Railway of Eau Claire against damages from accidents to passengers and employes, and had had a number of claims to pay on that account. But the policy expired April 1, 1901, and was not renewed, and all claims upon it had been settled prior to January, 1902, when the plaintiffs brought suit. This policy was negotiated entirely outside of the state of Wisconsin, by correspondence and personal interview with the chief executive officers of the railway company at Boston, Mass., where they had their headquarters, and was issued at Scranton, Pa., and forwarded from there by mail to the president of the railway company at Boston, and the premium was paid by note dated and made payable at that city. About the same time an accident policy of $5,000 was issued by the defendant to J. R. Harrigan, of Eau Claire, superintendent of the railway, and another of like amount, at the instance of Mr. Harrigan, to James T. Joyce, who was a personal friend. Still another was issued to Roy P. Wilcox, one of the plaintiffs, who was attorney for the railway. Harrigan's policy was a donation, but those of Joyce and Wilcox were paid for. They were not issued in Wisconsin, however, but were applied for by mail, and forwarded in the same manner from the home office in Scranton. The four policies mentioned were the only ones of the defendant ever in force in that state.

(5) The bill for which the plaintiff brought suit and obtained judgment was a disputed one. It had been presented to the defendant and payment refused; and, in consequence of this, Mr. Wilcox, after consulting with his partner Mr. Bundy, and looking up the law of Wisconsin as to what was sufficient to constitute an agency for the service of process in that state on a foreign insurance company, devised a plan by which, as he conceived, the plaintiffs would be able to sue the defendant company for their bill in the Wisconsin courts. He had, as we have seen, a policy of the defendant company on which a renewal premium was due December 30, 1901, of which fact he had received notice by mail from the secretary. In response to this he wrote, stating that he disliked to forward the money for a renewal without getting a receipt for it at the time (although the fact was that he had done so the preceding year, and his alleged reluctance was a mere pretense), and suggesting that, if the company would send the receipt to the cashier of some one of the banks at Eau Claire, he would pay such party upon its delivery to him. Among others mentioned was Mr. James T. Joyce, and in pursuance of the suggestion the renewal receipt was forwarded to Mr. Joyce by mail, with instructions to deliver it on payment of the premium called for. On receiving this communication, Mr. Joyce notified Mr. Wilcox, and in pursuance of his plan, the summons was served on Mr. Joyce, as agent of the company; and he subsequently forwarded it to the company, as before stated, along with the premium collected, after first deducting from the latter an agent's commission.

(6) Foreign insurance companies, such as the defendant, are prohibited by the laws of Wisconsin from doing business in that state, except upon certain conditions, with which the defendant had not complied. It is also made a misdemeanor by the same for any one to act as agent for any such insurance company without having first obtained a certificate from the insurance commissioner of the state; any one who collects a premium, or in any manner aids in doing so, being held to be an agent, unless he receives no compensation. All this was known to Mr. Wilcox when he suggested that the renewal receipt should be forwarded for collection to some one at Eau Claire, to whom he would pay on delivery.

The Law.

The right of the plaintiff to recover upon these facts depends upon the validity of the service of the summons in the original action. If the case is controlled by the Wisconsin law, it must be conceded that, aside from the trick practiced to obtain it, the service was good, and the judgment based upon it cannot be disputed. Rev. St. Wis. 1898, Sec. 2637, subd. 9; ^[1] Id. Sec. 1977; ^[2] State v. N.W. Endowment Ass'n, 62 Wis. 174, 22 N.W. 135; State v. U.S. Mutual Accident Ass'n, 67 Wis. 624, 31 N.W. 229; Firemen's Ins. Co. v. Thompson, 155 Ill. 204, 40 N.E. 488, 46 Am.St.Rep. 335; Dixon v. Corder of Ry. Conductors (C.C.) 49 F. 910. But the defendant is a Pennsylvania corporation, and not bound, therefore, by the laws of other states, except as by its acts it has subjected itself to them, and the question whether it has, is to be determined on principles of general jurisprudence, and not according to what may be held sufficient in any particular locality either by statute or judicial decision. Barrow Steamship Co. v. Kane, 170 U.S. 100, 18 Sup.Ct. 526, 42 L.Ed. 964. Except in matters of interstate commerce, a state may undoubtedly prescribe the conditions on which a foreign corporation shall be permitted to do business within it, and may include therein a provision with regard to the service of process on its agents. Lafayette Ins. Co. v. French, 18 How. 404, 15 L.Ed. 451. Where, therefore, a foreign corporation does business in such state, it will be presumed to have assented to these terms. St. Clair v. Cox, 106 U.S. 350, 1 Sup.Ct. 354, 27 L.Ed. 222; Merchants' Mgf. Co. v. Grand Trunk Ry. (C.C.) 13 F. 358; U.S. v. American Bell Telephone Co. (C.C.) 29 F. 17; Berry v. Indemnity Co. (C.C.) 46 F. 439. But it is essential in every case in which personal jurisdiction over such a corporation is claimed that there shall have been an actual and substantial transacting of business by it within the state, and the process by which jurisdiction is sought to be obtained must have been served on one who is truly representative of the corporation. St. Clair v. Cox, 106 U.S. 350, 1 Sup.Cot. 354, 27 L.Ed. 222; Fitzgerald Construction Co. v. Fitzgerald, 137 U.S. 98, 11 Sup.Ct.36, 34 L.Ed. 608; Mex. Cen. Ry. v. Pinkney, 149 U.S. 194, 13 Sup.Ct. 859, 37 L.Ed. 699; Goldey v. Morning News, 156 U.S. 518, 15 Sup.Ct. 559, 39 L.Ed. 517; Barrow Steamship Co. v. Kane, 170 U.S. 100, 18 Sup.Ct. 526, 42 L.Ed. 964; United States v. American Bell Telephone Co. (C.C.) 29 F. 17; St. Louis Wiremill Co. v. Consolidated Barb Wire Co. (C.C.) 32 F. 802. The doctrine is thus authoritatively stated by Mr. Justice Peckham in Conn. Life Ins. Co. v. Spratley, 172 U.S. 602, 19 Sup.Ct. 308, 43 L.Ed. 569:

'In a suit where no property of the corporation is within the state, and the judgment sought is a personal one, it is a material inquiry to ascertain whether the foreign corporation is engaged in doing business within the state; * * * and, if so, the service of process must be upon some agent so far representing the corporation in the state that he may properly be held, in law, an agent to receive such process in behalf of the corporation.'

These jurisdictional facts the state necessarily cannot control and it cannot, therefore, declare or prescribe in advance what shall be taken as the doing of business within its borders, nor what shall constitute a sufficiently representative agency. Both must be determined by the courts upon the facts as ...